Equal Pay Rights

The Equality Act 2010 implies an equality clause into every contract of employment. This clause requires that, where a person (the claimant) is employed on work equal to that of a comparator of the opposite sex, any term in the claimant's contract that is less favourable than the equivalent term in the comparator's contract is modified to be no less favourable.

Three types of equal work are recognised:

• Like work: Same or broadly similar work
• Work rated as equivalent: Work that has been given equal value in a formal job evaluation scheme
• Work of equal value: Work that is different but can be shown to be of equal value in terms of the demands made (skill, effort, decision-making, etc.) — this is assessed by an independent expert appointed by the Tribunal

An employer can defend an equal pay claim by showing that the pay difference is due to a genuine material factor (GMF) other than sex — for example, a market premium, greater seniority, different qualifications, or performance-related pay.

To bring an equal pay claim, you must identify an actual comparator — a real colleague (or in some cases a predecessor or successor in the same role) of the opposite sex who does equal work for more pay. You cannot use a hypothetical comparator.

The comparator must work for the same employer or an associated employer at the same establishment, or at a different establishment where common terms and conditions of employment are observed. This means that in large organisations or public sector bodies, comparators can be found across different departments or locations.

Identifying an appropriate comparator can be challenging because pay information is often confidential. However, you can request information from your employer through an equal pay questionnaire, and employment tribunal proceedings provide for disclosure. HMRC also publishes gender pay gap reports for organisations with more than 250 employees.

Equal pay claims can be brought in the Employment Tribunal or the civil courts (county court or High Court). The process in the Employment Tribunal is:

1. Notify Acas for Early Conciliation
2. Complete and submit the ET1 claim form, identifying the comparator and the basis of the claim
3. The Tribunal may appoint an independent expert to assess whether the work is of equal value
4. The hearing considers whether the work is equal and whether the employer has a genuine material factor defence

Time limits: if you are still employed, you must bring a claim within six years of the unlawful underpayment. If your employment has ended, the limit is six months from the end of employment. For claims brought in the civil courts, the limitation period is six years. Early advice is essential to ensure you are within time.

Since April 2017, employers with 250 or more employees in Great Britain have been required to report their gender pay gap annually under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. The report must show the mean and median gender pay gaps, the proportion of men and women in each pay quartile, bonus pay gaps, and the proportion of men and women receiving bonuses.

Gender pay gap reports are published on the government's portal and are publicly searchable. An employer's report may help you identify whether your employer has a pay gap that suggests systemic underpayment in female-dominated roles — which can support an equal pay claim or at least identify comparators.

The Employment Rights Bill 2024 proposed to require large employers to produce and publish equality action plans alongside gender pay gap data — setting out the steps being taken to address the gap. The Bill also proposed that ethnicity and disability pay gap reporting be introduced on a mandatory basis for large employers. These provisions were at consultation or committee stage when this guide was updated. Practitioners should monitor progress of the Bill through Parliament.

Even in the absence of mandatory reporting, you have the right to request pay information from your employer as part of an equal pay questionnaire or through the Employment Tribunal's disclosure process. The Equality and Human Rights Commission (EHRC) can also investigate and enforce gender pay gap reporting duties, and can take enforcement action against employers who fail to publish.

In large-scale equal pay litigation — particularly in local government, the NHS, and retail — trade unions often bring group claims on behalf of multiple claimants simultaneously, reducing the individual cost and complexity. If you believe you have an equal pay claim and work in a sector where equal pay disputes are common, contacting your trade union is an important first step. Unions can provide free legal support, identify appropriate comparators, and fund the costs of independent expert evidence in work of equal value cases. Individual equal pay claims are also possible through Citizens Advice or employment solicitors, particularly for shorter, more straightforward like-work or work-rated-as-equivalent claims.

One often overlooked aspect of equal pay law is the equality clause that is deemed to be implied into every contract of employment. Under section 66 of the Equality Act 2010, if any term of a woman's contract is less favourable than a corresponding term in the contract of a male comparator doing equal work, that term is modified to match the comparator's. This operates automatically — you do not have to prove that your employer intended to discriminate, only that the pay or contractual term is less favourable and the work is equal or equivalent. Documenting your role, your comparator's role, and the pay differential in writing before bringing a claim gives your solicitor the clearest foundation for building your case. Register for Acas Early Conciliation before the six-year limitation period expires — and note that the six-year limit applies to the ongoing underpayment, so acting promptly maximises the recoverable back-pay period.